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CA-9127.2022.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL APPLICATION NO.9127 OF 2022

IN REJECTED CASE NO. 840 OF 2015

IN FIRST APPEAL (ST.) NO. 21887 OF 2006

JALGAON CITY MUNICIPAL CORPORATION JALGAON

VERSUS

M/S. JAIN SALES AND SERVICES PVT. LTD. AND ANOTHER

…

Mr. S.P. Brahme, Advocate for the applicant.

Mr. Satyajit S. Bora, Advocate for respondent No.2.

...

CORAM :

SANDIPKUMAR C. MORE, J.

DATED :

14.12.2022.

ORDER:-

1.

The applicant i.e. the original appellant is seeking

recalling of the order dated 24.11.2014 by condoning the delay

of 2725 days in filing this application. Under the aforesaid

order, this Court dismissed Civil Application No. 5846 of 2007

and Civil Application No. 5847 of 2007 alongwith First Appeal

(St.) No. 21887 of 2006 for non-compliance.

2.

The learned Counsel for the applicant submits that

the applicant had sought stay to the operation and execution

of the decree passed in Summar Suit No. 12/2002 which was

in favour of present respondent No.1 in the aforesaid appeal

and this Court vide order dated 01.08.2007, had also granted

stay to the impugned decree in the said application, since

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CA-9127.2022.odt

before filing of the First Appeal, an amount of Rs. 77,70,069/-

was paid by the applicant to the present respondent No.1.

Thereafter this Court had directed the applicant to serve the

respondent through paper publication, but since the applicant

could not file copy of two newspapers, the Court had passed

conditional order dated 24.11.2014. As such, the learned

Counsel now submits that he is ready to prosecute the appeal

and the applications diligently and since the First appeal is

only restricted to the extent of quantum of interest only, the

same can be restored by giving opportunity to the applicant.

He further submits that no prejudice will be caused to the

respondents since principal amount of the decree is already

paid to them. He heavily relied on the following judgments :

(i)

Ram Nath Sao and others vs Gobardhan Sao and others

AIR 2002 SC 1201

(ii)

Perumon Bhagvathy Devaswom vs Bhargavi Amma

(2008) 8 SCC 321

(iii)

Esha Bhattacharjee vs Managing Committee of

Raghunathpur Nafar Academi and others

2013 (12) SCC 649

3.

On the contrary, learned Counsel for respondent

No.2 strongly opposed the application on the ground that

during pendency of this application the applicant deleted the

original decree holder i.e. respondent No.1, and therefore, the

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CA-9127.2022.odt

appeal is not at all maintainable for want of existence of main

decree holder. He pointed out that respondent No.2 herein is

merely an assignee of the decree who is only looking after the

execution proceedings. The learned Counsel for respondent

No.2 also relied on the following judgments :

(i)

The State of Punjab vs. Nathu Ram, AIR 1962 SC 89

(ii)

Sheela and others vs Central Bank of India and others

1998 (1) MhLJ 928

(iii)

Monjiram Indrachandra vs. Maneklal Mansukhbhai Seth

AIR 1929 Bom 353

(iv)

Maniben Devraj Shah vs Municipal Corporation of

Brihan Mumbai, (2012) 5 SCC 157

4.

Heard rival submissions and also perused the

documents on record. Admittedly, the record shows that this

Court had already granted stay to the execution of the

impugned decree under order dated 01.08.2007 in Civil

Application No. 5847 of 2007. Further, it appears that this

Court had also permitted the applicant to serve the

respondent No.2 through paper publication. However, since

the copies of two newspapers were not filed, the civil

applications were dismissed under conditional order dated

24.11.2014. Consequently, the main appeal also stood

dismissed.

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CA-9127.2022.odt

5.

In the judgments relied upon by learned Counsel

for the applicant, it has been observed that the relief of delay

condonation is discretionary and there is no precise formula

which can be laid down for the same.

Here in this matter, it appears that thoug